A party in a civil proceeding may offer into evidence third-party records (meaning those created by nonparties), like the records of a company, hospital, school, or bank. If the records are offered for the truth of what they say in a hearing where the Rules of Evidence apply, those records violate the general rule prohibiting hearsay. To be admissible, an exception under the Rules of Evidence or other applicable law that allows for their admission must apply. Rule 802. The party offering the records will often argue that the applicable exception is Rule 803(6), commonly referred to as the business records exception. This exception requires that the records be properly authenticated, including through the testimony of a qualified witness or an affidavit of the records custodian. Rule 803(6).
But as a recent Court of Appeals decision demonstrates, trial courts have discretion over whether to permit authentication of third-party business records by affidavit, and when they are the trier of fact how much weight to give those records if admitted. In re M.D., Jr.,, __ N.C. App. __ (July 1, 2026). In re M.D. also reminds proponents of evidence to consider whether witness testimony is needed to clarify the meaning of the records for the trier of fact, potentially increasing their persuasive effect. In this post, I review M.D. and offer practical considerations for litigants and judicial officials. (Note that this post is written through the lens of a juvenile abuse, neglect, dependency (A/N/D) proceeding initiated by a department of social services (DSS); however, the lessons from M.D. discussed here are also relevant to other proceedings where the Rules of Evidence apply.)
Rule 803(6); Business Records Exception
Rule 803(6) excepts from the rule against hearsay records in any form made in the regular course of business. This exception requires consideration of both (i) the method and circumstances of the preparation of the record, and (ii) the information contained within the record. These inquiries test whether the records and the statements contained therein are sufficiently reliable for use at trial. State v. Galloway, 145 N.C. App. 555, 566 (2001) (citations omitted) (noting that “[t]rustworthiness is the foundation of the business record exception”). A proponent of third-party business records may provide the court with this information by offering either the testimony or affidavit of a records custodian or other qualified witness, typically an employee who is knowledgeable about the circumstances of the business’s procedures and record creation. Rule 803(6); see also In re K.E.P., 298 N.C. App. 527 (2025) (so stating).
A proponent must give “advanced notice” of their intention to authenticate a nonparty business record via an affidavit. Rule 803(6). The rule does not say how much notice is required; however, local rules or pretrial orders may impose specific notice requirements. Whether notice is sufficient may depend on (i) the due process rights of an opposing party who needs time to prepare and potentially respond, and (ii) how long the proponent had the opportunity to provide notice before doing so. The adage ‘the sooner the better’ may apply.
For more on the business records hearsay exception in the juvenile context, see Abuse, Neglect, Dependency, and Termination of Parental Rights Manual, Chapter 11, Section 11.6.C.5. (2025).
In re M.D., Jr., __ N.C. App. __ (July 1, 2026)
Facts. An infant with the pseudonym Matthew was taken to the hospital by his parents after crying, choking, vomiting, and going limp. Although Matthew’s father was not trained in CPR, Mathew’s father attempted to perform CPR on Matthew before taking him to the hospital. After arriving at the hospital unresponsive and in cardiac arrest, medical staff resuscitated Matthew and determined that he had sustained numerous injuries to his skull, ribs, and eye. Sl. Op. at 2-4.
Trial. After DSS filed a petition alleging Matthew was abused and neglected, the trial court granted DSS nonsecure custody of Matthew and later proceeded to adjudication. There, DSS called two social workers and both parents to testify. The testimony of the social workers was “extremely limited due to their lack of first-hand knowledge of Matthew’s medical history and records” as neither was the investigating social worker. Sl. Op. at 3-4. The testimony of the parents “provided some explanation for Matthew’s injuries,” including the father’s CPR attempts, the hospital’s resuscitation efforts, and the need for a vacuum-assisted delivery. Sl. Op. at 4.
DSS also offered nearly 1500 pages of medical records authenticated by an affidavit. Those records were admitted over the objection of parents’ counsel; however, the court stated that the records were of limited utility.
I’m not a medical provider, and I’m not a medical expert. So what good does it do to give me a report with all this big language that I may or may not understand. I don’t even know how helpful it would be to the Department. But . . . it comes in.
Sl. Op. at 5-6.
At the close of DSS’ evidence, counsel for the parents argued DSS failed to prove abuse and neglect and made a joint motion pursuant to Rule 41(b) of the Rules of Civil Procedure to dismiss the petition. Counsel attacked the use of an affidavit to authenticate the medical records and the failure to offer witness testimony, including testimony of an expert, to explain what was in the records, stating
[When DSS files a petition] that could potentially lead to termination of parental rights, potential criminal charges, being on the responsible individual list…there is a level of evidence that you must meet. It’s clear, cogent and convincing…[I]f this is such a significant case then [DSS should] have the significant witnesses here to prove that.
Sl. Op. at 7.
The trial court granted the motion and dismissed the petition after stating DSS “did not offer the testimony of any medical personnel or expert to provide an explanation for [Matthew’s] injuries.” Sl. Op. at 8. Further, the evidence presented by DSS included the testimony of the parents that Matthew’s injuries were accidental.
Appeal. On appeal, the Court of Appeals determined the trial court did not abuse its discretion in dismissing the petition, finding that the record was “devoid of clear and convincing evidence” that Matthew’s injuries were the result of non-accidental conduct by the parents. Sl. Op. at 15. Further, DSS failed to “present evidence that allowed even the inference to be made.” Id. Instead, DSS’ case in chief included (i) records that the trial court gave little weight to without the aid of medical personnel or expert testimony to explain their significance, (ii) the testimony of social workers who did not have first-hand knowledge of Matthew’s medical history and records, and (iii) the testimony of the parents “that Matthew’s injuries were caused by accidental means” only (Sl. Op. at 16) (emphasis in original). The Court of Appeals determined that the trial court
consider[ed] and weigh[ed] the evidence…to the best of its ability but ultimately gave greater weight to the testimony of [the parents], DSS’ own witnesses, who offered explanations for Matthew’s injuries. DSS may not have believed [the parents’] explanations, but DSS did not call anyone, specifically a medical provider or expert witness, who could testify to the contents of the medical records or offer any opinion about what the records might reveal about the nature of Matthew’s injuries. The trial court did not misapprehend the law by concluding it could not interpret the medical records without an expert medical witness testifying. The medical records delineate Matthew’s injuries, but only an expert could have interpreted the records to give an opinion as to the proximate cause of the injuries.
Sl. Op. at 16-17 (emphasis in original).
Note that the problem with the medical records in this case was not one of admissibility. The records were authenticated by an affidavit of the records custodian and admitted under Rule 803(6). Instead, the problem was that the records were complex and no witness testified to explain what the records showed. The trial court was unable to decipher the records without that explanation, and so it gave less weight to the records and more weight to other evidence presented, including the parent’s testimony.
Practical implications
In re M.D. serves as a reminder for practitioners and judicial officials about some of the issues that arise when third-party business records are offered in a hearing where the Rules of Evidence apply. (To be clear, I am not suggesting that anyone in M.D. did or did not take the steps I discuss below. Parties make numerous decisions, sometimes for strategic reasons, that are not necessarily captured in an appellate opinion.)
Proponents of evidence. Prior to trial, a party should consider not just what evidence it will offer but also how, including potentially using testimony or an affidavit to authenticate third-party records. A party must also consider the theory of admissibility it plans to proceed under. Whenever possible, a party should identify multiple paths forward, particularly for evidence that is critical to the case. So, a party planning to offer medical records via affidavit may also want to subpoena medical personnel and place them on standby in the event their testimony is needed to authenticate or explain the records. Similarly, a proponent should determine whether multiple hearsay exceptions apply. That may save the proponent if an objection is sustained that blocks one theory of admissibility, or in the event of an appeal.
The offering party also needs to consider the contents of the records in at least two ways. First, it is generally permissible for a business record to contain “opinions…or diagnoses.” Rule 803(6). However, those opinions may be inadmissible in some instances, for example if the basis of the opinion is not apparent from the record or if the basis is unreliable. See, e.g., State v. Galloway, 145 N.C. App. 555 (2001) (doctor’s statement in a hospital record that the patient had psychiatric problems was inadmissible because the doctor was not qualified to render a psychiatric opinion and the sources of information on which the doctor based the opinion were unreliable). Some commentators have noted that even where opinions within records are admissible, trial courts may sometimes be reluctant to admit those opinions. See, e.g., Edward J. Imwinkelried et al., Courtroom Criminal Evidence (6th ed. 2016) § 1220, 12-59 – 12-60 (noting that trial courts may admit noncontroversial, simple entries in a record, like a blood pressure reading, while determining that an opposing party is entitled to confront a witness and not a document for matters that are complex, subjective, or central to the issue in the case); Robert P. Mosteller et al., McCormick on Evidence (8th ed. 2020) § 293, at 481–82 (FED. R. EVID. 803(6) [which is comparable to N.C. R. EVID. 803(6)] allows opinions and diagnoses within business records, but such statements may be inadmissible if they lack trustworthiness, or if their prejudicial effect outweighs their probative value under Evidence Rule 403; courts also may be reluctant to permit a verdict based on an opinion in a business record without allowing the opponent the opportunity to cross-examine the person who gave the opinion).
Second, a proponent of records should consider whether a lay person will struggle to understand the records without the help of a witness. As M.D. demonstrates, a trial court may give less weight to records it cannot understand. An expert may need to testify to interpret the records and to opine on their meaning. See Rule 702(a) (a qualified witness may offer expert opinion on scientific, technical, or other areas requiring specialized knowledge to assist a judge or jury in understanding the evidence or determining a fact in dispute).
Opposing parties. A party should anticipate the evidence and the theories of admissibility that their opponents will offer and should prepare arguments to challenge that evidence. Regarding third-party business records, a party may consider whether
- the elements of Rule 803(6) were not satisfied, e.g., because of the way the records were created or maintained, or because notice of intent to rely on an affidavit for authentication was insufficient;
- individual hearsay statements within the records are inadmissible, even if the records are authenticated; and
- to subpoena the records custodian or other qualified person in case records authenticated by affidavit are admitted over the party’s objection.
If the records are admissible, a party may still argue the records alone are insufficient. The party may argue witness testimony is needed given the significance or the complexity of the records, or, in the alternative, that the records should be given less weight.
If the proponent of the records is also the petitioner and there is insufficient evidence to prove the allegations, opposing counsel may move to dismiss at the close of the petitioner’s evidence pursuant to Rule 41(b). If that motion is denied, the party should renew its arguments at the close of all evidence and again in closing, preserving those issues for appeal.
Judicial officials. Rule 803(6) does not require trial courts to accept an affidavit instead of live witness testimony to admit third-party records. Courts may have different motivations for choosing to exercise their discretion here. Consider for example medical records with a handwritten note in the margin that concludes a parent intentionally harmed their child. It may be difficult for the court in this example to determine the reliability of that statement without testimony about how the person making the statement knows it to be true. Remember, trustworthiness is the foundation of the business records exception. State v. Galloway, 145 N.C. App. 555 (2001).
Alternatively, a court may not understand the meaning or significance of records that convey especially complex information without the benefit of expert or other qualified witness testimony. See, e.g., In re M.D., Jr., __ N.C. App. __ (July 1, 2026). The trier of fact assigns weight to evidence and may be convinced by some evidence more than other evidence. See Rule 104(e) (distinguishing admissibility from determinations as to weight and credibility); see also In re N.K., 274 N.C. App. 5 (2020) (discussing a court’s authority to determine weight of evidence in the A/N/D context). Appellate courts do not reweigh evidence as that is the duty of the trial court. See, e.g., In re L.H., 378 N.C. 625 (2021).
Conclusion
Rule 803(6) allows for an affidavit in lieu of testimony for the authentication of nonparty business records. A court, however, is not required to accept an affidavit to authenticate records. Further, without witness testimony (including, possibly, that of an expert), the records themselves may be difficult to understand such that they are given little weight by the court. Parties should be prepared to offer and challenge evidence with that in mind.
